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Myers v. AT&T Corp.


January 28, 2009


On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5100-01.

Per curiam.


Argued September 29, 2008

Before Judges Carchman, R. B. Coleman and Simonelli.

Plaintiff Lois Myers, an employee of defendant AT&T Corp., became ill with cancer. After temporarily leaving her employ on disability and after her cancer was in remission, she then returned to her previous position. Two years later, plaintiff was terminated as part of an extensive reduction in force of thousands of employees.

Asserting that her termination was motivated by her disability, plaintiff filed a complaint alleging discrimination.*fn1

Following a jury trial, the jury disagreed and found in favor of defendant.

Plaintiff moved for a new trial claiming that the jury verdict was against the weight of the evidence, that the jury charge did not properly explain the law regarding mixed motives for terminations, that the trial judge did not adequately answer the jury's questions regarding the law, and that the judge did not advise the jury regarding a negative inference that could be drawn against defendant. Plaintiff's motion was denied, and she now appeals. On appeal, plaintiff raises the same issues that she raised on her motion for a new trial. We affirm.

These are the relevant facts presented to the jury.*fn2

Plaintiff, employed by defendant since 1983 and a regular recipient of job performance awards and commendations, was diagnosed with ovarian cancer. She went on paid disability leave from February 1998 until November 1998, and when her cancer was in full remission, she resumed her old position. When she returned to work, she experienced no discrimination and stated that she felt healthy, as if the cancer had "never happened."

In the summer of 1999, due to a reorganization in the company, plaintiff became a B-band manager of the High Value Clients Organization (HVCO), which was newly started in the Morristown office. Plaintiff's supervisor was Dana Joachim, a C-band manager who was supervised by Gary Hilbert, the E-band manager in charge of the HVCO. In addition to plaintiff, Joachim also supervised another B-band manager, Greg Kirby. Plaintiff's job encompassed creative marketing, and Kirby was in charge of tracking profitability. The HVCO also employed Marisa Cozzolino, a B-band manager supervised by D-band manager Steve Pardonner. Plaintiff noted that throughout 1999 and 2000 she felt healthy, did not consider herself affected by her illness, and worked as hard after the cancer as she had before.

Defendant had a procedure for yearly performance appraisals whereby the employee would submit a self-appraisal that included a narrative as well as a rating in two areas. In the area of "Attainment of Business Results," the employee could choose (from the highest to the lowest) "Above target," "On target," "Below target" or "Significantly below target." In the area entitled "Demonstration of Leadership Concepts," the employee could choose (again from highest to lowest) "Role Model," "Accomplished," "Skilled" or "Needs development."

After the employees completed their performance evaluations, the supervisors would meet for a "round table discussion" of all the employees within a particular band. At this meeting, the supervisors could opt to change a rating that an employee had chosen. Subsequently, the supervisors would submit their recommendations for approval to the manager in charge of the organization. Tim Ward, director of human resources, observed, and plaintiff conceded, that it was known that performance ratings chosen by an employee could be changed by supervisors.

In 1999 and 2000 defendant engaged in "forced distributions" of ratings and rankings, meaning that only 25% of employees could be rated in the highest categories. The managers used the round table meetings to comply with the directive of "forced distribution," and to insure that only a limited number of employees within a band attained the highest ratings.

Plaintiff submitted her 1999 appraisal to Joachim giving herself the highest possible ratings of "Above target" and "Role Model" in the two categories. Kirby gave himself identical ratings.

Toward the end of 1999, Hilbert, Joachim and Pardonner met at the "round table meeting" to discuss the three B-band employees: plaintiff, Kirby and Cozzolino.*fn3 In order to comply with the forced distributions, only one of the three could receive the highest possible ratings. They decided to give plaintiff and Cozzolino the second-to-highest ratings and Kirby the highest ratings. Joachim changed plaintiff's performance review form by using whiteout, and Ward testified that this was an acceptable practice. Apparently, Joachim did not sign the performance review, but Hilbert did on February 29, 2000. Hilbert stated that he had very limited interactions with plaintiff and relied on Joachim entirely for an assessment of plaintiff's capabilities. However, in her previous performance review of 1997, plaintiff also did not attain the highest ratings.

At the end of 1999, when the round table meeting occurred, there were rumors that a forced management program*fn4 involving layoffs was imminent. Hilbert and Pardonner stated that rumors of layoffs were constant at the company during that time. In January 2000, Hilbert received word that there would indeed be cutbacks in his department. Out of 22,000 employees in plaintiff's unit at the beginning of 2000, only 17,000 remained by the end of the year. In fact the entire HVCO, which was only one year old, was disbanded; and Hilbert, Joachim, and Kirby started looking for new jobs within the company.

Hilbert tried to help his employees find new positions in the company. He contacted Kim Partoll, the manager of a different unit, with the goal that some of his employees would be absorbed into her organization. At first Partoll indicated that she might have positions for two B-band managers, but later stated that she only had room for one.

Hilbert was responsible for determining which of the three B-band managers in the HVCO would be transferred to Partoll's organization. Human resources had issued guidelines to be used by managers in determining who would be retained. The decision was based on the 1999 appraisal ratings, and Hilbert stated that this made sense because the HVCO had only been in existence for one year. Because Kirby had the highest rating, he was selected to be retained and was transferred to Partoll's department. Plaintiff and Cozzolino were designated "at risk" of being terminated. Cozzolino ultimately found another position at AT&T Wireless, but plaintiff failed to secure a new position and was terminated on March 31, 2000.

In her 2002 deposition, Joachim expressed that, although she did not know exactly how many hours plaintiff worked, based on productivity and interactions throughout the day, she believed that Kirby worked harder and longer hours than plaintiff. She stated "[m]y perception was that [plaintiff] may have been working harder if she hadn't had the illness." Based on many conversations with plaintiff about the relationship between stress and the reoccurrence of cancer, Joachim surmised that plaintiff might not be working harder because she was concerned about a reoccurrence of her cancer. Joachim's statement formed the foundation of plaintiff's discrimination claim. However, notwithstanding plaintiff's belief that she was terminated because of her disability, she contacted Joachim for assistance with matters pertaining to retroactive adjustment of her salary and obtaining new employment. In fact, at the time that plaintiff was terminated, Hilbert and Joachim were attempting to help plaintiff get a retroactive merit salary increase.

After assessing the facts presented to it, the jury found no evidence of discrimination and entered a verdict in favor of defendant. This appeal followed.

We now address plaintiff's claims of error. First, plaintiff asserts that the jury verdict was against the weight of the evidence, and plaintiff is entitled to a new trial.

Rule 4:49-1(a) provides that a motion for a new trial should be granted when, after carefully considering the record and credibility of trial witnesses, the judge concludes that "it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). As noted in Dolson v. Anastasia, 55 N.J. 2, 6 (1969), the judge must carefully scrutinize all of the evidence, and consider the "intangible feel" of the case. Jury verdicts should be set aside in favor of a new trial sparingly and "only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006) (citation omitted).

Plaintiff argues that Joachim's statement that plaintiff did not work as hard as Kirby because of her cancer constituted direct evidence that the decision to lower plaintiff's rating, which resulted in her termination, was based on a perceived disability.

The New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 to -49 (LAD), prohibits an employer from discriminating on the basis of disability or perceived disability. N.J.S.A. 10:5-4.1. To establish discrimination, plaintiff must present a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed. 2d 668, 677 (1973). Defendant would then have to state a legitimate reason for the adverse employment action. Ibid. Under the "burden-shifting" or "pretext" analysis, the burden would then shift back to plaintiff to prove that the stated reason was merely a pretext for discrimination. Id. at 804, 93 S.Ct. at 1825, 36 L.Ed. 2d at 679. For a more expansive discussion, see Myers, supra, 380 N.J. Super. at 452-59.

Conversely, under the "mixed motives" framework set forth in Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S.Ct. 1775, 1787-88, 104 L.Ed. 2d 268, 284 (1989), after presenting the prima facie case, plaintiff would have to establish that discrimination was a motivating factor in the employment decision. Then, the employer would have to produce evidence that the decision would have been made anyway, notwithstanding the discriminatory factor. Ibid. To succeed on her discrimination claim, plaintiff would have to prove that a discriminatory factor was at least part of the motivation for plaintiff's termination, or that defendant's stated reason for the termination was merely a pretext for discrimination. Myers, supra, 380 N.J. Super. at 456-57.

The trial judge, on the motion, concluded that the evidence amply supported the jury verdict that discrimination played no role in plaintiff's termination. Contrary to her theory, plaintiff's rating was lowered because Joachim believed that she did not work as hard as Kirby and only one of them was entitled to receive the highest rating. Whatever the reason Joachim attributed to the fact that plaintiff was not working harder is irrelevant. The fact remained that Joachim believed plaintiff was not working harder. The rating was not lowered because plaintiff was disabled or because Joachim perceived her to be disabled. Joachim surmised that the reasons for plaintiff not working as hard as Kirby might be plaintiff's cancer, but it could have been any other reason as well. Notably, on plaintiff's prior performance review she also did not attain the highest ratings.

The jury verdict was supported by evidence in the record that only one person in the organization could attain the highest ratings; Kirby attained the highest ratings because he worked harder and longer than plaintiff; the layoffs were based solely upon the 1999 performance reviews; and there was only one position available for a B-band manager, which Kirby was entitled to because of his higher ratings. Plaintiff's termination was not a result of a perceived disability, but rather because of her actual work performance. The trial judge did not err in denying plaintiff's motion for a new trial.

We reach the same result regarding plaintiff's claim that the trial judge improperly charged the jury as to mixed motive.

The judge charged the jury with respect to the burden of proof:

The burden of proof is first on the plaintiff to establish her claim . . . . If she so prevails, then the burden shifts to AT&T to establish by a preponderance of the evidence all of the facts necessary to prove the following issues. One that AT&T lowered Miss Myers' 1999 performance appraisal rating and relied solely upon it for a legitimate business reason. Two that AT&T retained Mr. Kirby rather than Miss Myers in the force reduction because his performance appraisal was higher.

Next, he clarified the importance of each party's bearing its own burden of proof.

The right of each party to have the other party bear the required burden of proof is a substantial one and it's not a mere matter of form. Proof need not come wholly from the witnesses produced by the party having the burden of proof but may be derived from any believable evidence in the case.

Finally, the judge gave a mixed motive instruction:

It is the plaintiff's burden to prove that it is more likely than not that the defendant engaged in intentional discrimination because of the plaintiff's disability. That is the ultimate issue you must decide. Did the defendant discriminate because of the plaintiff's disability? The plaintiff may do this by directly proving that a discriminatory reason more likely than not motivated the defendant's action or indirectly by proving that the employer's stated reason for its action is not the real reason for its action. You may find that the defendant had more than one reason for its actions. For example you may find that the defendant was motivated by both the plaintiff's disability and by other nondiscriminatory factors such as the plaintiff's job performance. To prevail the plaintiff is not required to prove that her disability was the only reason or motivation for the defendant's action. Rather the plaintiff must only prove that her disability played a role in the decision and that it made an actual difference in defendant's decision.

If you find that the plaintiff's disability did make an actual difference in the defendant's decision, then you must enter judgment for the plaintiff. If however, you find that the defendant would have made the same decision regardless of the plaintiff's disability, then you must enter judgment for defendant.

[(emphasis added).]

The judge also provided the jury with the following interrogatory: "Do you find that the plaintiff, Ms. Myers, has proven by a preponderance of the evidence that defendant, AT&T, engaged in intentional discrimination by how it rated her because of her perceived disability?" The jury requested clarification regarding the jury charge and the judge responded by stating that it was the function of the jury to decide the case based on the instruction that had already been given.

A proper jury charge is a prerequisite for a fair trial. Reynolds v. Gonzalez, 172 N.J. 266, 288 (2002). "Jury instructions should correctly state the applicable law in clear and understandable language." Boryszewski, supra, 380 N.J. Super. at 374. "[T]he ultimate responsibility rests with the court to instruct the jury regarding the appropriate law that is applicable to the evidence." Das v. Thani, 171 N.J. 518, 530 (2002). When reviewing a trial judge's instruction to the jury, we must read the charge as a whole. Sons of Thunder v. Borden, Inc., 148 N.J. 396, 418 (1997) (citations omitted). We will only reverse where the charge inadequately conveys the law and confuses or misleads the jury. Ibid. (citations omitted). Even erroneous instructions will be upheld when those instructions are incapable of "producing an unjust result or prejudicing substantial rights." Ibid. (citations omitted).

New Jersey courts employ two methods to determine whether discrimination occurred: the "burden-shifting" or "pretext" analysis set forth in McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed. 2d at 677, and the "mixed motives" framework set forth in Price Waterhouse, supra, 490 U.S. at 244, 109 S.Ct. at 1787-88, 104 L.Ed. 2d at 284.

Both templates require proof by the plaintiff of the prima facie elements of discrimination. McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed. 2d at 678; Price Waterhouse, supra, 490 U.S. at 244, 109 S.Ct. at 1787-88, 104 L.Ed. 2d 284-85. A prima facie case can easily be shown because the requirements are modest, and it can be shown by demonstrating that the factual scenario could be compatible with discrimination. Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (quoting Marzano v. Computer Science Corp., 91 F.3d 497, 508 (3d Cir. 1996)).

In the McDonnell Douglas framework, once plaintiff makes out a prima facie case, then a burden of production, not the ultimate burden of proof, is placed on the employer to set forth a legitimate non-discriminatory reason for the adverse employment action. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106, 147 L.Ed. 2d 105, 117 (2000). Evidence of an employer's legitimate reason for the act is also not difficult to prove. McDonnell Douglas, supra, 411 U.S. at 802, 93 S.Ct. at 1824, 36 L.Ed. 2d at 678. After the employer gives its reason, the burden shifts to plaintiff to demonstrate that the reason articulated by the employer is not the true reason but a "pretext" for the discrimination. Id. at 804, 93 S.Ct. at 1825, 36 L.Ed. 2d at 679. In order to show pretext, plaintiff may utilize evidence such as defendant's treatment of members of the same class, or past treatment of plaintiff during the course of employment, as well as defendant's general policy toward members of the class. Ibid.

There is an alternative theory available and relevant here. The mixed motive theory acknowledges that often an employment action may be based upon many different criteria, only one of which is discriminatory. Myers, supra, 380 N.J. Super. at 456-57. The plurality decision in Price Waterhouse held that a plaintiff must demonstrate that an impermissible reason was a motivating factor in the adverse employment action. Price Waterhouse, supra, 490 U.S. at 244, 109 S.Ct. at 1787-88, 104 L.Ed. 2d at 284. Once plaintiff has met this burden, the employer must assert an affirmative defense that it would have made the same decision even without the unlawful motive. Ibid.

A concurring opinion agreed that the employer would only be required to make its showing upon a demonstration that the unlawful motive was a "substantial factor" in the adverse employment action. Price Waterhouse, supra, 490 U.S. at 259, 109 S.Ct. at 1795, 104 L.Ed. 2d at 294 (White, J., concurring), while Justice O'Connor further required the plaintiff to produce "direct evidence" that an illegitimate criterion was a "substantial factor." Id. at 276, 109 S.Ct. at 1804, 104 L.Ed. 2d at 304 (O'Connor, J., concurring). We previously observed that because Justice O'Connor's concurrence created the requisite majority of the Court, her requirement of "direct evidence" is considered the holding in the case. Myers, supra, 380 N.J. Super. at 457.*fn5

In Desert Palace, Inc. v. Costa, 539 U.S. 90, 99-100, 123 S.Ct. 2148, 2154, 156 L.Ed. 2d 84, 94-95 (2003), the Court found that "direct evidence" of discrimination was not necessary for the plaintiff to satisfy its burden of proof in a Title VII mixed motives case; "circumstantial evidence" was acceptable.

There is some disagreement among the federal circuits as to whether the Desert holding should be utilized for discrimination cases other than Title VII. Myers, supra, 380 N.J. Super. at 459. However, we applied the revised standard of Desert Palace to disability discrimination claims as well. Id. at 461. Moreover, in our earlier opinion, we concluded that the proofs submitted met the "direct evidence" standard on a motion for summary judgment. Id. at 462-63. These were the same proofs that were rejected by the jury as proof of discrimination.

Here, the trial judge determined that a mixed motive charge was appropriate. Plaintiff's counsel submitted proposed jury instructions prior to the charge conference. At the charge conference, he expressed concern with the jury charge, stating that the mixed motive charge should be given separately from the pretext charge and that defendant's burden of proof should be clearly articulated. The judge ultimately charged the jury utilizing the model jury charge for cases of mixed motive employment discrimination. Model Jury Charge (Civil) 2.21, "The New Jersey Law Against Discrimination" (2003) (Model Jury Charge 2.21). Plaintiff did not object.

An erroneous jury charge is reviewed according to the standard set forth in R. 2:10-2, that is whether it is "clearly capable of producing an unjust result." The error must be such that it "led the jury to a result that it would have otherwise not reached." Pressler, Current N.J. Court Rules, comment 2.1 on R. 2:10-2 (2008). Instructions given in accordance with the model charge, or which closely track the model charge, are generally not considered erroneous. Mogull v. CB Commer. Real Estate Group, Inc., 162 N.J. 449, 466, certif. denied, 167 N.J. 607 (2000). A party is not entitled to demand particular language in the jury instruction provided the law is adequately explained to the jury. State v. Brims, 168 N.J. 297, 306-07 (2001).

Plaintiff asserts that the instruction was incomprehensible because the court used mixed motive language but ultimately concluded with a McDonnell Douglas burden of proof. We disagree. The judge adequately set forth the instruction regarding pretext, and then instructed the jury properly regarding mixed motive. The judge stated that there could be numerous reasons for an adverse employment action and that it was the job of the jury to determine whether plaintiff's disability was a motivation for the termination. If so, the judge stated that the jury must find in favor of plaintiff unless defendant demonstrated that it would have made the decision regardless of plaintiff's disability. This was a clear mixed motive instruction, which included a requirement that defendant show that it would have made the same decision regardless of the disability.

Plaintiff asserts that the jury charge was improper because it did not state that the burden of proof shifts to the defendant once plaintiff has shown direct evidence of discrimination. While the judge did not use the language "the burden of proof shifts to the defendant;" this was self-evident from the language utilized: "[i]f however, you find that the defendant would have made the same decision regardless of the plaintiff's disability, then you must enter judgment for defendant." Clearly, defendant must demonstrate that it would have made the same decision regardless of the disability. The absence of the term "burden of proof" does not change what the jury was told.

We likewise reject plaintiff's argument regarding the use of Model Jury Charge 2.21. This charge is entitled "General Charges (Determinative Factor; Mixed Motive Charge)," which indicates that it was meant to be used for mixed motive cases. The only type of case that the introductory note meant to exclude from the charge is one where "direct evidence" of discrimination is presented.

Direct evidence can be a "statement made by a decision-maker associated with the decision-making process [which] actually bore on the employment decision at issue." McDevitt v. Bill Good Builders, 175 N.J. 519, 528 (2003). In McDevitt, the supervisor nodded in agreement when his secretary stated "too old" in response to an inquiry as to why the plaintiff had been terminated. Id. at 525. This nod was considered direct evidence of discrimination. Id. at 532. When an employee attempts to prove discrimination by "direct evidence," the quality of the evidence necessary must be such that if believed it proves discrimination without inference or presumption. Bergen Commer. Bank v. Sisler, 157 N.J. 188, 208 (1999). The evidence must show a hostility toward members of the employee's class, and a direct causal connection between the hostility and the adverse employment action. Ibid. (citing Price Waterhouse, supra, 490 U.S. at 277, 109 S.Ct. at 1804, 104 L.Ed. 2d at 305).

Here, contrary to plaintiff's assertion, there is no "direct evidence" of discrimination. Joachim's statement does not prove discrimination "without inference or presumption." Unlike the situation in McDevitt, Joachim's statement is not direct evidence of discrimination. Even though she believed that plaintiff might have been working harder had it not been for the cancer, she surmised that this was plaintiff's choice and not that plaintiff was incapable of working hard. She stated that she did not believe plaintiff incapable of working hard, but that plaintiff had made a choice not to do so. In fact, plaintiff concedes that she never felt she was discriminated against by Joachim. There is no evidence that Joachim treated plaintiff or any other disabled employee poorly or that she harbored any hostility toward the disabled. The evidence presented falls woefully short of the standard for "direct evidence" articulated in Bergen Commer. Bank, supra, 157 N.J. at 208. The introductory note limiting use of the charge would not apply in this case because there was no "direct evidence." The judge was correct in utilizing this model jury charge and in fact incorporated it verbatim.

In the introductory note to the model jury instruction, the Supreme Court states that in order to simplify the process for jurors, the issue of whether a prima facie case has been brought as well as the question of whether the defendant had a legitimate business purpose for the employment action are determinations that are to be made by the court. The only resolution left for the jury is whether the employers' reason is pretextual, or whether a discriminatory factor was a motivation for the adverse employment action.

Even if the judge's instruction was flawed because of the absence of clarity regarding defendant's burden of proof, plaintiff was not prejudiced. The evidence of discrimination was sparse, given that plaintiff stated that she never felt that Joachim discriminated against her, and there were no other alleged incidents of discrimination.

Defendant's evidence that discrimination played no role in its decision was ample. The company had made major cutbacks in the years leading up to plaintiff's termination. The cutbacks were based on that year's performance review ratings. Only one of the B-band managers was entitled to the highest rating. There was only one position in Partoll's organization. Kirby was working harder and longer hours than plaintiff. Any perceived error did not produce an unjust result because the record supported a finding that the termination had nothing to do with plaintiff's disability.

Plaintiff also takes issue with the verdict sheet, stating that the single question asked on the sheet was inadequate because it did not refer to mixed motives. As noted, the judge's charge effectively followed Model Jury Charge 2.21, and the interrogatory here was substantially a word-for-word quote of the model interrogatory that follows it. Moreover, at the charge conference, plaintiff agreed that this interrogatory was acceptable. We have noted that the result was not unjust. We do not perceive a need to address the issue now except to note that the interrogatory, in combination with the twenty-six page jury charge, was a clear and accurate statement of the law and the issue to be determined by the jury. The judge condensed the question into one interrogatory which, if answered in the affirmative, would have constituted a finding of liability in favor of plaintiff. The interrogatory was a fair encapsulation of the essential issue before the jury.

As to the judge's response to the jury questions, we note that the judge discussed his responses with both counsel before addressing the jury. Plaintiff did not object to the judge's response. We are satisfied that the judge's response did not prejudice plaintiff's rights, and we certainly find no basis to conclude his response to be plain error. R. 1:7-2. The questions all pertained to matters that were conceded at trial and adequately explained in the charge.

Finally, as to plaintiff's claim that the judge failed to include in his adverse inference charge a reference to other documents that defendant failed to produce, plaintiff's reliance on our decision in Tartaglia v. UBS Painewebber Inc., No. A-4412-03 (App. Div. Sept. 7, 2006), aff'd in part, rev'd in part, ___ N.J. ___ (2008), is misplaced. In Tartaglia, plaintiff both generally and specifically identified documents that defendant failed to produce. Tartaglia, supra, (slip. op. at 13-14).

Here, plaintiff made a generalized claim as to unidentified documents that she surmises must have existed. We are satisfied that the judge adequately charged the jury because plaintiff failed to identify any documents that were withheld or would have impacted on the issue. In sum, the jury's finding of no discrimination was a just result.


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